Opposition Brief — Monteleone v. Municipal Court

No. 92-1940

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

ANTHONY S. MONTELEONE, et al.

Petitioner,

V.

MUNICIPAL COURT OF CALIFORNIA,

COUNTY OF SOLANO JUDICIAL DIST., et al.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF RESPONDENT STATE OF CALIFORNIA

IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistamt Attorney General

RONALD A. BASS

Senior Assistant Attorney General

ANN K. JENSEN

Supervising De:puty Attorney General

[Attorney of Record]

ENID A. CAMPS

Deputy Attormey General

455 Golden Gate Ave., Suite 6200

San Francisco, California 94102

Telephone: (415) 703-1591

Attorneys for Respondents

. ieee

ISSUE PRESENTED

Whether the court can dismiss a habeas petition as

moot where petitioners served substantial jail time by

rejecting probation and did not demonstrate collateral

consequences from their misdemeanor convictions for

failure to file tax returns?

i

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE AND OF FACTS

REASONS FOR DENYING THE WRIT

I. This Case Is Not Deserving Of

Plenary Consideration By The Court

II. Federal Habeas Review Is Unwarranted

Because Petitioners Have Not Demonstrated

That Their Misdemeanor Tax Convictions

Have A Material Effect On Present Legal

Rights

CONCLUSION

15

15

17

29

rH

TABLE OF AUTHORITIES

Cases:

Aaron v. Pepperas

790 F.2d 1360 (9th Cir. 1986)

Arnold v. Panora

593 F.2d 161 (1st Cir. 1979)

Bjerkan v. U.S.

529 F.2d 125 (7th Cir. 1975)

Boyer v. City of Orlando

402 F.2d 966 (Sth Cir. 1968)

Broughton v. North Carolina

717 F.2d 147 (4th Cir. 1983)

cert. denied 466 U.S. 940 (1984)

Cancino v. Craven

511 F.2d 1371 (9th Cir. 1975)

cert. denied 423 U.S. 875 (1975)

Carafas v. LaVallee

391 U.S. 234 (1968)

Conway v. Adult Authority

396 U.S.107 (1969)

Cox v. McCarthy

829 F.2d 800 (9th Cir. 1987)

21

27

17, 27

24

20

Engle v. Isaac

456 U.S. 107 (1982)

Lane v. Williams

455 U.S. 624 (1982)

Liner v. Jafco, Inc.

375 U.S. 301 (1964)

Malloy v. Purvis

681 F.2d 736 (11th Cir. 1982) -

Naylor v. Superior Court of Arizona

558 F.2d 1363 (9th Cir. 1977)

cert. denied 435 U.S. 946 (1978)

North Carolina v. Rice

404 U.S. 244 (1971)

Parker v. Ellis

362 U.S. 574 (1960)

Pennsylvania v. Mimms

434 U.S. 106 (1977)

People v. Wheeler

4 Cal.4th 284 (1992)

Reimers v. State of Oregon

863 F.2d 630 (9th Cir. 1988)

Robbins v. Christianson

904 F.2d 492 (9th Cir. 1990)

Sibron v. New York

392 U.S. 40 (1968)

17

18, 21, 25, 27

17

24, 27

18, 21

17, 18, 26

17

26

25, 26

25

27

26

U.S. v. Sultani

704 F.2d 132 (4th Cir. 1983)

Statutes:

California Penal Code

§ 170.6

California Revenue & Taxation Code

§ 19401(a)

§ 19406

§ 19407

United States Code

Title 28, § 1254(1)

Title 28, § 2253

Title 28, § 2254

Court Rules:

Federal Rules of Appellate Procedure

Rule 22(b)

Other Authorities:

13A C. Wright, A. Miller & E. Cooper

Federal Practice and Procedure

§ 3533.4 (2d ed. 1984)

Comment, Civil Disabilities of Felons

53 Va.L.Rev. 403 (1967)

27

20

24

eect

Vv

Crowe, Tax Protest Prison Term Ends for Duo

Fairfield Daily Republic, Nov. 27, 1991

Department of Transportation Federal

Aviation Administration’s

Conduct and Discipline manual,

Chapter 3

Notes, The Mootness Doctrine in the

Supreme Court 88 Harv. L. Rev. 373 (1974)

United States Office of Government Ethics

Standards of Ethical Conduct For Employees

of the Executive Branch, Part I,

Executive Order 12674 and

5 C.F.R. Part 2635, publ. at

57 Fed.Reg. 35006-35067

(Aug. 7, 1992)

15

3, 22

17

a, 2

No. 92-1940

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

ANTHONY S. MONTELEONE and

MARY ANN CUMMINS-MONTELEONE

Petitioners,

Vv.

MUNICIPAL COURT OF CALIFORNIA, COUNTY OF SOLANO

NORTHERN SOLANO JUDICIAL DISTRICT, et al.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF RESPONDENT STATE OF CALIFORNIA

IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

Petitioners seek review of an unpublished Ninth

Circuit Court of Appeals Memorandum filed on December

8, 1992, which dismissed for mootness their consolidated

appeals from a district court’s denial of their 28 U.S.C.

section 2254 habeas petitions. App. A, Consolidated

cases: Mary Ann Cummins Monteleone v. Municipal Court,

et.al., Case No. 91-16725, D.C. No. CV-90-01448-LKK;

2

Anthony S. Monteleone v.Municipal Court, et. al., Case No.

91-16804, D.C. No. CV-90-01447-LKK.

The United States District Court for the Eastern

District of California had denied petitioners’ separate

habeas petitions on the merits in unpublished opinions on

October 15, 1991, after adopting extensive findings by the

U.S. Magistrate filed on August 29, 1991, and August 30,

1991. App. B.

Petitioners’ jury convictions stemming from state tax

code violations previously had been affirmed on August

20, 1990, in unpublished written opinions by the State of

California, Solano County Appellate Department, which

found that petitioners had "attempted to abuse the judicial

system," that the "record does not reveal any error of law,"

and that the trial judge gave petitioners “the opportunity

to mitigate [their] punishment, but [they] failed to do so."

App. C People v. Mary Ann Cummins-Monteleone, No.

FC28088; People v. Anthony Monteleone, No. FC28087.

JURISDICTION

Petitioner invokes this Court’s jurisdiction under 28

US.C § 1254(1).

On March 4, 1993, the Ninth Circuit Court of

Appeals denied petitioners’ petitions for rehearing and

"suggestion for rehearing en banc" of the Court’s

December 8, 1992, Memorandum.

Whether the case is moot following petitioners’

release from custody is at issue in this case.

ee

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Petitioners rely upon the following Statutes and

Rules: Title 28, U.S. Code Sections 2253 and 2254;

Federal Rules of Appellate Procedure, Rule 22(b).

Respondent also relies upon the following federal

executive and administrative agency orders and California

statutes: (1) United States Office of Government Ethics

Standards of Ethical Conduct For Employees of the

Executive Branch, Part 1, Executive Order 12674 and 5

CFR. Part 2635 (August 1992). App. F; (2) Department

of Transportation Federal Aviation Administration’s

Conduct and Discipline manual, Chapter 3. App. F; (3)

Cal.Rev. & Tax Code, §§ 19401, 19406. App. E.

STATEMENT OF THE CASE AND OF FACTS

On October 19, 1988, the Solano County District

Attorney filed complaint number F84281CR and

F84282CR charging petitioners Mary Ann Cummins-

Monteleone (M. Monteleone) and Anthony S. Monteleone

(A. Monteleone), (collectively, “petitioners") with six

misdemeanor counts as follows: (1) Willful and unlawful

failure to file an income tax return from 1985-1987.

(Count I-III, Cal. Rev. & Tax Code, § 19406); (2) Failure

to file an income tax return and supply information

required by the Revenue and Taxation Code from 1985-

1987. (Count IV-VI, Cal. Rev. & Tax Code, § 19401(a)).

See, CR 18-24, Respondent’s Appendix of Exhibits in Support

_ of Answer in Opposition to Petitions for Writ of Habeas

TE

4

orpus, at Exhs. 1 and 2+/

On or about March 14, 1989, petitioners received

from the court, a copy of the complaint. Exh. 1 and 2.

Petitioner, A. Monteleone, initially appeared for

arraignment on April 6, 1989, at which time he was

advised as to the charges pending against him. Exh. 1, p.

1; Exh.3, RT 4/6/89, p. 1. Petitioner represented that he

had money to hire his own attorney and requested a

continuance to seek counsel. Exh. 1, p. 1; Exh. 3, RT

4/6/89, p. 1.

Between April 6, 1989, on August 14, 1989, the

court granted petitioner numerous continuances for the

express purpose of retaining counsel upon petitioner’s

assurances that he had sufficient funds for this purpose.

Exh. 1; Exh. 3. Specifically, the record reflects that the

court granted petitioner continuances on the following

dates: (1) April 6, 1989; (2) May 11, 1989; (3) June 1,

1989; (4) June 21, 1989; and (5) July 24, 1989. Exh. 1;

Exh. 3, RT 4/6/89, pp. 1-2; RT 5/11/89, p. 1; RT 6/1/89, p.

1; RT 6/21/89, p. 1.

On August 14, 1989, A. Monteleone appeared

without counsel for the sixth consecutive time since April

6, 1989-—Exh. 1; Exh. 3. Over petitioner A. Monteleone’s

objection, the court entered not guilty pleas to the charges

in the complaint. Exh. 1, p. 2.

Similarly, the court continued the M. Monteleone

case seven times for counsel] and plea. Exh. 2; Exh. 3,

1. Unless otherwise noted, all references are to exhibits which

are found in Respondents’ Appendix tc Answers, Exhs.1-11 listed

in the Court of Appeals docket sheet as CR 18-21 in the A.

Monteleone case and CR 21-24 in the M. Monteleone case.

5

RT 8/29/89, pp. 11-18; Exh. 3, RT 4/4/89, p. 1.

On August 29, 1989, petitioner M. Monteleone,

appeared again in court without counsel. Exh. 2; Exh. 3,

RT 8/29/89, pp. 11-18; Exh. 3, RT 9/20/89 p. 31.

The court then entered a plea of not guilty on

petitioner M. Monteleone’s behalf. Exh. 3, RT 8/29/89, p.

14.

The court set trial for September 19, 1989, with

petitioner’s "co-defendant [A. Monteleone], who’s also

been engaged in the same type of conduct, attempting to

delay the process of the Court." Exh. 3, RT 8/29/89, p.

14.

On September 19, 1989, petitioners appeared in

court without counsel. Exh. 1, p. 4; Exh. 3, RT 9/19/89,

pp. 1, 4. The court, Judge Udall was disqualified pursuant

petitioners’ California Penal Code section 170.6 motion.

Exh. 3, RT 9/19/89, p. 3.

The trial commenced on September 20, 1989. Exh.

3, RT 9/20/89 p. 39. Petitioners were given a copy of the

jury instructions, but refused to look at them. Exh. 3, RT

9/20/89 (In Chambers) pp. 1-7.

Neither petitioner M. Monteleone nor Petitioner A.

Monteleone were represented by counsel at trial. Exh. 1,

pp. 4-6; Exh. 2, pp. 5-7.

Prior to trial, the court denied petitioner M.

Monteleone’s motion to continue the trial, finding that

petitioner "had adequate time to obtain counsel and

prepare for trial.". CR 21-24, Exh. 2, p. 5.

Petitioner A. Monteleone had refused to "sign [the]

financial declaration [to obtain appointed counsel] under

penalty of perjury." Exh. 1, p. 4. Accordingly, the court

would "not appoint counsel." Exh. 1, p. 4; Exh. 3, RT

9/20/89, pp. 6-23.

In response to petitioner’s request for appointment

of counsel and for a continuance, the court stated as

follows:

"The matters were both put over

seven times for you to hire attorneys... .

It’s obvious to the Court that what you were

doing was, basically, delaying the Court

process by indicating you were mailing letters

to attorneys. But in any event, it was the

Court’s feeling you did not intend to retain

counsel; obvious you were doing nothing

more than dealing with dilatory obstruction

of process to delay this matter in court. I

put this matter over for jury trial during the

last court appearance. You've had until

today to retain counsel." Exh. 3, RT 9/20/89

p. 3.

Prior to trial, the court also denied petitioners’

Marsden motion on the ground he could not "discharge an

attorney you don’t have." Exh. 3, RT 9/20/89 p. 36. The

court observed, "Maybe that was . . .the next step after

you hired a lawyer. Maybe you filed that prematurely."

Exh. 3, RT 9/20/89 p. 36.

On September 20, 1989, a jury found petitioners

guilty on all counts alleged in the complaint. Exh. 1, pp.

5-6; CR 21-24, Exh. 2, p. 7.

At trial, Petitioner M. Monteleone professed to

have such knowledge of the judicial system that she could

tell the court what the district attorney was required to

file, but also professed to have no understanding of the

proceedings against her. CR 21-24. Exh. 3, RT 9/20/89

pp. 24-25, passim.

Evidence at trial and the related hearings showed

that petitioner A. Monteleone had recently retired from

the military and was previously employed at Mare Island.

Exh. 3; Exh. 3, RT 10/27/89 p. 70. Petitioner M.

Monteleone was employed with the F.A.A. as an Air

Traffic assistant. Petitioner M. Monteleone was a

member of "The Free Enterprise Society in Fresno," and

petitioners had not filed a tax return since 1982. Exh. 3,

RT 10/27/89 p. 71, RT 8/29/89, pp. 11-18, RT 9/20/89 p.

31.

After trial, petitioners appeared without counsel for

sentencing. Exh. 3, RT 9/20/89 p. 43. The district attorney

requested that petitioners receive the "maximum time" for

their offenses. Exh. 3, RT 9/20/89 p. 43. The court

informed petitioners that it was "willing [to] . . . put the

sentencing matter over so [they could] file [their] income

tax returns." Exh. 3, RT 9/20/89 p. 45.

On October 3, 1989, petitioners appeared in court

for sentencing without counsel. Exh. 3, RT 10/03/89 pp.

52-58. Petitioners, again, requested additional time, and

waived time for sentencing. Exh. 3, RT 10/03/89 pp. 55-

56.

Petitioner M. Monteleone said she had money only

to pay her attorney to handle the "new trial." Exh. 3, RT

10/03/89 pp. 54-55. ‘Petitioner said her attorney, Mr.

Fallman would be available on October 27, 1989, and the

court continued the case to that date. Exh. 3, RT

10/03/89 p. 58.

On October 27, 1989, petitioners appeared in court

for sentencing without counsel representing them directly.

Exh. 3, RT 10/27/89 p. 59. Petitioner M. Monteleone told

8

the court that her attorney, Mr. Fallman was "in the

courtroom today," and would be retained if the court

granted a new trial. Exh. 3, RT 10/27/89 p. 59.

The court noted for the record, all of the reasons

that it would not grant the motion for a new trial, citing

again, petitioners’ dilatory tactics. Exh. 3, RT 10/27/89 pp.

60-67.

On October 27, 1989, prior to sentencing, the court

addressed petitioners and observed as follows.

"(1] The Court: All right. Appears there’s no

legal cause why judgment and sentence should not be

imposed.... [{] Ill suspend imposition of judgment

and sentence. I'll place you on probation for a three-

year period under the supervision of the Solano County

Probation Department. It will be formal probation. [1]

As I indicated to you before, I don’t understand.

Normally, the people I get in here on tax-protest type

cases are those people where they’re either undereducated

or don’t understand the system. Both of you appear to

be quite intelligent. [{] I don’t know what caused you to

buy into this idea you think you’re going to be able to get

Out without paying taxes like everybody else does. [fl]

Most of the people I have here on tax cases like this do

not work for the government. [f! I mean, Mrs.

Monteleone, you work for the FAA, I think you said, as

an Assistant Air Traffic Controller; so, all your income

comes from the government. ... Mr. Monteleone is

retired military, so, his whole -- his money comes directly

from the government, all comes from the taxpayers. [1]

He was previously employed at Mare Island, all tax

money. You’ve been on the public dole for as long as I

9

can see. [{] So, I’ve never had those kind of people.

People who protest taxes don’t normally work for the

government... All your income is derived through

public monies. . . . I mean, we all would have a lot more

money if we didn’t pay our taxes. That’s the bottom line.

[1] You have not filed a return since 1982, it appears. I

think the taxes you owed were $180,000. I can’t recall the

exact amount. [1] You’ve never been underemployed or

underprivileged, it looks to me, and you’ve had good

incomes, just failed to pay your taxes, and it seems like

the Franchise Tax Board has been very patient with you.

[1] I can’t believe, since 1982, it just gets to trial in 1989.

They’ve given you ample opportunity, contacted you by

person and by mail, and you continue to assert these

ridiculous constitutional arguments that no Court in the

land has ever accepted, and will never accept, I assure

you. [1] Any lawyer will probably tell you that who you

discussed the matter with. [1] The Federal Courts have

been coming down on tax protesters. One of the leaders

of the tax protest movement a couple years ago got

something like 50 years, or something. [{l] I don’t want

to put you people in jail, but you seem to just try to make

a mockery of the system, not only by not paying your

taxes but by manipulating the system. {{] I have given

yeu every opportunity to retain counsel... ." Exh. 3, RT

10/27/89 pp. 59-79.

The court then offered petitioners the following

sentence: One year in county jail on each count, with all

but 30 days in county jail suspended on each count, and

with a $1000 fine on each count if income tax returns are

filed within 15 days; payment of $1,456.76 for case

10

investigations costs; and payment of back taxes due. Exh.

1; Exh. 2; Exh. 3, RT 10/27/89 pp. 72-73. "Which would

mean, said the court, "if you file your income tax returns,

in accordance with your probation, within 15 days of

today’s date, that instead of doing three years, you will do

90 days. . . . [and pay] $3000 as opposed to $30,000," in

fines. Exh. 1; Exh. 2; Exh. 3, RT 10/27/89 p. 72.

Petitioners rejected the court’s terms of probation.

Exh. 1; Exh. 2; Exh. 3, RT 10/27/89 pp. 72-76. Prior to

rejecting the terms of probation, petitioner M. Monteleone

conferred with her counsel, Mr. Fallman. Exh. 3, RT

10/27/89 pp. 74-75.

On October 27, 1989, the court sentenced

petitioners as follows: One year each on Counts I, II, and

III, for a total of three years in County Jail, each; $20,000

fine on each count, for a total fine of $60,000, each; and

a $1,456.76 restitution fee. Exh. 1; Exh. 2; Exh. 3, RT

10/27/89 p. 78. Petitioners apparently were not remanded

into custody. Exh. 3, RT 10/27/89 pp. 77-79.

On November 1, 1989, petitioners filed notice of

appeal and application for release on their own

recognizance pending disposition of appeal. Exh. 1, p.

8.

On June 4, 1990, petitioners filed appeals in Case

Nos. FC28087 and FC28088 in the Superior Court of

Solano County. Exh. 8, Appellant’s Opening Brief; Exh.

10, Opinion on Appeal. Petitioners were represented by

appointed counsel] during the appeal, after they signed

under penalty of perjury a "Financial Statement on

Eligibility For Appointment of Counsel and

Reimbursement." Exh. 7.

On August 20, 1990, the Solano Superior Court,

11

Appellate Department, denied petitioners’ appeals. Exh.

10, Opinion on Appeal.

On September 5, 1990, the Solano County Superior

Court, Appellate Department denied petitioners’ petition

for rehearing and application for certification of the case

to the California Court of Appeal. Exh. 10, Order

Denying Petition for Rehearing and Denying Application

for Certification; Exhs. 8 and 9.

While still released on their own recognizance,

petitioners filed a Petition for Writ of Habeas Corpus in

the California Supreme Court on or about September 25,

1990, in Case Nos. S017634 and S017639. Exh.12; Exh.11.

On October 25, 1990, the California Supreme

Court denied the petitions. CR 1, Pet.Exh.I; CR 21-24,

Pet.Exh.I. |

Also on October 25, 1990, execution of petitioners’

three-year sentence in County Jail apparently commenced.

Exh. 1, p. 11; CR 1, A. Mont.Pet.,p. 2, 95; CR 21-24, Exh.

2, p. 12; CR 2, M. Mont. Pet., p. 2, 95.

On November 21, 1990, petitioners filed their

petitions for writ of habeas corpus with the United States

District Court. CR 1, 2. The petitioners challenged their

convictions and sentence alleging deprivation of the right

to counsel, failure to meet venue and vicinage

requirements, and improper arraignment. As relief they

requested their "immediate release . .. from present

custody" or for their custodians to "show cause why the

petitioner[s] should remain confined and deprived of

[their] liberty." CR 1,2.

On or about July 8, 1991, petitioners applied for

"bail pending determination of petition for writ of habeas

|

12

corpus." CR 25 (A. Mont.); CR 28 (M. Mont.). In her

petition M. Monteleone stated that she “was on bail

without incident during trial and for 13 months following

trial;" that "[b]ecause of [her] incarceration [she had] been

removed from [her] position as an Air Traffic Control

Assistant," and that "[u]pen [her] release [she] intend[s] to

immediately move for reinstatement." CR 28, pp. 1-3.

The district court denied the bail petitions on August 26,

1991. CR 26 (A. Mont.); CR 30 (M. Mont.).

On August 29 and August 30, 1991, the Magistrate

filed his Findings and Recommendations in the case. See,

App. B.

With respect to the deprivation of counsel claim,

the Magistrate found that petitioners’ habeas petitions

were "completely lacking in merit on this ground," that the

"case was no rush to justice," and that the Court had

"never witnessed judicial patience of the sort exhibited by

the Solano County bench." App.B; CR 28, pp. 2-14.

Likewise, the Magistrate found "without merit"

petitioner’s claim that his "First Amendment" rights were

violated because the court improperly "demand[ed].. .

that he perform an act contrary to his religious belief

... and take an oath" in filling out the financial statement

required for appointed counsel. Pet. pp. 16-17, 21-22.

The Magistrate found the trial court, did not err in

refusing to appoint counsel, and that the judge reasonably

attempted to utilize the least restrictive means possible to

have petitioners’ attest to their financial status as required

for appointed counsel. As the Magistrate observed,

petitioners "were simply not willing to perform any task

that might get them counsel and get the trial started," and

"petitioner herein signed his petition to this court under

—SSSSSSLa_xes—=-aQjY aS

13

penalty of perjury without any problem being raised in

this action." CR 28 (A. Mont.), pp. 9-14.

The Magistrate further found meritless petitioners’

contentions that their convictions were in violation of the

Sixth Amendment vicinage requirements. App. B. The

Magistrate observed that it "is clear that California law

allows for the prosecution of failure to file tax offenses in

the county of residence. Cal. Rev. & Tax. Code § 19407,"

and that it was only petitioner who presumed that tax

actions could only be prosecuted in Sacramento where tax

returns are processed. “Petitioner’s contention would

produce an absurd result," the Magistrate recognized. CR

28 (A. Mont.) pp. 14-15.

Finally, the Magistrate likewise rejected, based on

the evidence, petitioners’ claims that they were improperly

arraigned. App. B.

On or about September 30, 1991, petitioners each

filed in the Ninth Circuit a "Petition for Application for a

Writ of Mandamus for an Order Commanding Release of

Petitioner on Bail Pending Determination of Petition for

Writ of Habeas Corpus." |

In the petitions, petitioners repeatedly emphasized

that "if [they are] not released pending the determination

of [their] Writ of Habeas Corpus [their] Petition{s] will

become moot upon serving out [their] sentence(s]." Pets.

§ 10, p. 3; M. Monteleone Pet. p. 8, 7 25, 1 26; A.

Monteleone Pet., p. 7, 1 24, 9 25.

On October 15, 1991, the District Court denied the

petitions and adopted the Magistrate’s extensive findings

issued on August 29 and 30, 1991. CR 2m. 2a Se

Petitioners appealed on October 24, 1991. CR 36.

On or about February 18, 1992, petitioners filed

14

their opening briefs in the Ninth Circuit Court of Appeals.

In his Court of Appeals Opening Brief, petitioner

A. Monteleone stated that he “has served his jail sentence

and was released from custody on October 17, 1991." Pet.

Court of Appeal Open. Brief, p. 5. In her Court of

Appeals Opening Brief petitioner M. Monteleone stated

she "has served her jail sentence and was released from

custody on November 26, 1991." Pet. Court of Appeal

Open. Brief, p. 5.

On December 8, 1992, the Court of Appeals

dismissed petitioners appeal "as moot." On or about

January 21, 1993, petitioners timely filed a "petition for

rehearing and suggestion for rehearing en banc." In the

rehearing petition, petitioners contended that their appeals

were not moot, and set forth the reasons they believed

their convictions had collateral consequences. They also

asked the Court to allow for further briefing on the issues.

On March 4, 1993, the Ninth Circuit Court of

Appeals denied petitioners’ petitions for rehearing and

"suggestion for rehearing en banc" of the Court’s

December 8, 1992 Memorandum.

On July 15, 1993, after a hearing, the Solano

County Municipal Court granted petitioners credit for time

served against their $60,000 fines. App. D. However, the

Court did not waive their $1,456.76 restitution fees to the

Franchise Tax Board as compensation for their

investigatory expenses, and informed petitioners that they

were still obligated to pay such restitution fees by June 15,

1994. App. D.

15

REASONS FOR DENYING THE WRIT

i This Case Is Not Deserving Of Plenary

Consideration By The Court

This case is not deserving of plenary consideration

by the Court. The case involves unique factual

circumstances, and an unusual and tangled procedural

history not susceptible to repetition. See App. B, D; Exhs.

1-11. The case does not seek to resolve legal questions of

general importance transcending the litigant’s narrow

interests. Petitioners with the apparent assistance of the

tax protest group the "Free Enterprise Society" are

involved in extensive self-generated litigation, designed at

delaying and abusing court processes to their own benefit.

See, CR e.g., 18-21, Exh. 4-7; App. B and C; Crowe, Tax

Protest Prison Term Ends for Duo, Fairfield Daily Republic,

Nov. 27, 1991; see also Respondent’s Court of Appeal

briefs.2/

2. Members of the "Free Enterprise Society," apparently

believe that taxes are unconstitutional because the Sixteenth

Amendment was never properiy ratified.

Petitioner A. Monteleone in his "Supplement Number 2 To

Motion To Dismiss" filed prior to trial in Solano Municipal Court

on September 5, 1989 states that "Defendant herein has challenged

the validity of the, so-called, legal tender laws on the basis of a

fraudulent Certification of ratification of the Sixteenth Amendment

to the United States Constitution." CR 19, Exh. 4. Likewise, in

response to the State Franchise Tax Board’s letter for taxes due in

tax years 1983-1986, petitioners informed FTB in part as follows:

"It has come to our attention that the non-apportioned income tax

is a voluntary tax and congress’s original intent and letter of all

revenue laws made in pursuant to the passage of the Sixteenth

Amendment was a proposed tax measured by the net profit and

gain derived from the source and not on the capitol or other

16

Petitioners who successfully delayed their trials for

months could have accepted the leniency of probation

after their misdemeanor convictions, but instead elected

substantial jail time and fines. Subsequently, petitioners

were in custody and able to seek collateral federal habeas

review only because they forestalled serving their jail

sentences for about one year while they exhausted state

court appellate remedies. See, CR 28.

Although it is not part of the record below, the

State further notes that on July 15, 1993--after petitioners

were released from custody--they requested and were

granted a waiver of their $60,000 fines as credit for time

served. App. D. The Municipal Court did not likewise

waive the $1,456.76 in restitution fees to the Franchise

Tax Board, but extended the time for payment to June 15,

1994. App. D.

Finally, in any event, the courts below which fully

considered the substance of petitioners’ appeals found

petitioners’ claims meritless, and further review of their

arguments is unwarranted. See, App. B and C.

Accordingly, this fact-specific case with negligible

implications is not certworthy.

property (source). { We have recently received conclusive and

irrefutable certified documents pertaining to this from the National

Archives in Washington D.C." CR 21, Exhs. 6-7.

In response, the Franchise Tax Board sent petitioners a

letter which stated in part as follows:

"The Franchise Tax Board will not respond to

correspondence objecting to state taxes on constitutional, religious

or moral grounds. The reason for this is that hundreds of Board

of Equalization and state and federal court decisions have been

reached on such issues finding the arguments and objections to be

frivolous and lacking in merit." CR 21, Exh. 6.

Il. Federal Habeas Review Is Unwarranted

Because Petitioners Have Not Demonstrated

That Their Misdemeanor Tax Convictions

Have A Material Effect On Present Legal

Rights

Review also is unnecessary because petitioners have

not met all threshold requirements for federal habeas

corpus review of final state court judgments.

The 28 U.S.C. § 2254 statutory requirement of

custody is satisfied as long as the petitioner is in custody

of the state when the petition for writ of habeas corpus is

filed, and release thereafter does not divest the court of

its statutory jurisdiction. Carafas v. LaVallee, 391 US.

234, 238, 242-243 (1968) overruling Parker v. Ellis, 362 U.S.

574 (1960); Engle v. Isaac, 456 U.S. 107, 113-115, n. | Ae

(1982).

Mootness, however, is a distinct requirement for

federal review. The Court’s "impotence ’to review moot

cases derives from the requirement of Article III of the

Constitution under which the exercise of judicial power

depends upon the existence of a case or controversy.”

North Carolina v. Rice, 404 U.S. 244, 246 (1971) citing

Liner v. Jafco, Inc., 375 U.S. 301, 306 n.3 (1964).

It is recognized that the "application of Article IT

to particular cases [is] often dependent upon subtle

nuances in the Court’s interpretation of the facts .. . [and

that in] mootness inquiries ... the range of factual

questions which must be considered is greater than in

other justiciability cases." Notes, The Mootness Doctrine in

the Supreme Court, 88 Harv. L. Rev. 373, 377-378 (1974).

18

"(T]he principal focus in determining whether a

case is moot is upon the existence or non-existence of any

‘collateral consequences’ that remain from the conviction."

Naylor v. Superior Court of Arizona, 558 F.2d 1363, 1365-

6 (9th Cir. 1977) cert. denied 435 US. 946 (1978).

Despite petitioners claim otherwise, it was

consistent with Ninth Circuit practice for that Court to

address the issue of mootness, sua sponte. As the Ninth

Circuit properly has emphasized in the past, mootness is

not a discretionary matter which a court is free to ignore.

"Mootness is not merely a ducking device’... It goes

directly to the jurisdiction and power of the federal courts

to act." Naylor v. Superior Court of the State of Arizona,

558 F.2d at 1366; see also Lane v. Williams, 455 U.S. 624,

629 (1982); North Carolina v. Rice, 404 U.S. at 244, 246.

Although it is unclear upon exactly what bases the

Ninth Circuit dismissed petitioners’ habeas petitions,

respondent notes that petitioners were "in custody" when

they filed their federal petitions for writ of habeas corpus.

However, no case or controversy exists where, as

here, a habeas petitioner’s misdemeanor sentence has

been served and no present "collateral consequences"

remain as a result of the misdemeanor sentence or

conviction. Jd.

During the course of this long litigation, petitioners

have failed to demonstrate any substantial collateral

consequence flowing from their misdemeanor convictions

that should permit them to obtain federal habeas relief.

Indeed, petitioners, themselves, recognized the

negligible impact of their convictions and sentence when

they requested release on their own recognizance pending

determination of their habeas petitions.

19

Specifically, for example on or about September 30,

1991, following the Magistrate’s findings in their cases on

August 29 and August 30, 1991, petitioners each filed in

the Ninth Circuit a "Petition for Application for a Writ of

Mandamus for an Order Commanding Release of

Petitioner on Bail Pending Determination of Petition for

Writ of Habeas Corpus."

In the petitions, petitioners emphasized in bold

type that "if [they are] not released pending the

determination of [their] Writ of Habeas Corpus [their]

Petition[s] will become moot upon serving out [their]

sentence[s]." Pets. 1 10, p. 3. Petitioners also stated that:

"Because of the District Court’s large

number of civil actions now pending and

voluminous record submitted to the district

court for review, by the California Assistant

Attorney General . . ., petitioner[s] contends

[they] will serve [their] sentence prior to the

determination of the Petition for Writ of

Habeas Corpus therefore mooting [their]

Petition[s] for Writ of Habeas Corpus

contrary to the holding in North Carolina v.

Rice (1971 404 U.S. 244); Flast v. Cohen,

1968 392 U.S. 83 ...." M.Monteleone Pet.

p. 8, 1 25; A. Monteleone Pet., p. 7, 1 24.

Petitioners likewise contended: They "should not

have to remain incarcerated, and then released at the last

possible moment before serving [their] sentence[s] out

thereby preventing [their] Writ of Habeas Corpus from

becoming moot. However, it now appears that this is the

point that these proceedings have reached. Boyer v. City

of Orlando, 402 F.2d 966 (Sth Cir. 1968)... ." M.

20

Monteleone Pet. p. 8, 1 26; A. Monteleone Pet. p. 7, 1

25.

The allegations set forth in petitioners’ Ninth

Circuit rehearing petitions, and again in their certiorari

petitions, do not dispel petitioners’ original candid

assessment of impending mootness, or otherwise

demonstrate that petitioners’ misdemeanor tax offense

convictions carry actual legal "collateral" disabilities

sufficient to warrant federal habeas review.?/

Although it is an important function of our

judiciary to protect citizens from erroneous convictions,

the mootness inquiry in habeas attacks on state judgments

should be a stringent one. See, Cox v. McCarthy, 829 F.2d

800, 803-804 (9th Cir. 1987). Where as here habeas relief

is sought by out-of-custody state defendants who have had

full access to the state appellate process, the federal

courts should not be burdened with the broad task of

further reviewing all state misdemeanor convictions,

without proof of continuing material harm to the

3. Petitioners complain of the following general collateral

consequences as a result of their misdemeanor tax conviction: (1)

The "stigma" of being labeled "tax protestors" or "tax evaders"

"[g]iven today’s climate about paying one’s ’fair share’ of taxes.";

(2) sentence enhancement in future cases; (3) impeachment of

credibility in future cases; (4) bail enhancement; and that (5)

"Many state, federal, local and private employment forms require

disclosure by the applicant of any convictions or sentences served

by the applicant [e.g. Federal SF Form 171]." Cert. Pet., pp. 12-

15.

Petitioners also complain of the following specific

consequences of their misdemeanor tax convictions: (1) M.

Monteleone’s conviction was “used to terminate her from her job

as air traffic assistant with the FAA, as well as keeping her from

being re-instated." Cert. Pet. pp. 14-15.

21

complainants. See, 13A C. Wright, A. Miller & E.

Cooper, Federal Practice and Procedure § 3533.4, at 310-

311 (2d ed. 1984).

As this Court has observed with respect to the

important parameters of collateral habeas review:

"Collateral review of a final judgment is not

an endeavor to be undertaken lightly. It is

not warranted absent a showing that the

complainant suffers actual harm from the

judgment that he seeks to avoid." Lane v.

Williams, 455 U.S. at 632-633 n. 13.

Accordingly, the bare allegation that a social

"stigma" might attach to a conviction should not create the

necessary “collateral consequence" predicate for federal

habeas corpus relief. Naylor v. Superior Court, 558 F.2d at

1365; see also, Bjerkan v. U.S., 529 F.2d 125 (7th Cir.

1975); Broughton v. North Carolina, 717 F.2d 147, 148-149

& n. 3 (4th Cir. 1983) cert. denied 466 U.S. 940 (1984)

("continued reputational interests" which petitioner has in

overturning her criminal contempt conviction" is not "legal

consequence" which is remediable in federal habeas

petition).

Indeed, such a moral claim rings hollow in this

case, where petitioners voluntarily and publicly align

themselves with a "Sixteenth Amendment was never

properly ratified” tax protest group, and where any alleged

employment and financial woes would stem equally from

petitioners’ decision not to pay federal taxes as of 1983.

At trial petitioner A. Monteleone told the court that he

had resigned from his government job at Mare Island so

that the IRS would not continue to levy his paycheck. See

Exh. 3, 9/20/89 RT 6-11. Petitioner M. Monteleone also

22

stated "the IRS is levying my paycheck," and that she

made only $75 a week. See Exh. 3, 9/20/89 RT 6-11.

Likewise, it would be inappropriate to presume that

M. Monteleone lost her job at the FAA and is barred

from reinstatement solely as a result of her misdemeanor

state tax convictions.

It is respondent’s understanding that under federal

regulations, petitioner M. Monteleone could be removed

and barred from FAA employment based upon her failure

to pay federal tax debts, and that her conduct in

denouncing her tax responsibilities could be just cause for

her employers to question her ability to reliably perform

her public-safety related job. See App. F, e.g. United

States Office of Government Ethics, Standards of Ethical

Conduct For Employees of the Executive Branch, Part I,

Executive Order 12674 and 5 C.F.R. Part 2635 (August

1992) (setting forth requirement that employees "shall

satisfy in good faith their obligations as citizens, including

all just financial obligations, especially those such as

Federal, State, or local taxes that are imposed by law.");

Department of Transportation Federal Aviation

Administration’s Conduct and Discipline manual, Chapter

3, § 300 (providing that FAA employees "must conduct

themselves while off duty in a manner that will not cause

the public to question their reliability and trustworthiness

..").

Department of Transportation Federal Aviation

Administration’s Conduct and Discipline manual, Chapter

3, §305 (a) specifically provides in part:

"All employees are expected to

discharge their private financial obligations

and to maintain a reputation in the

23

community for honoring debts. Failure

without sufficient excuse or reason to honor

valid debts, including claims based on court

judgments and tax delinquencies, or to make

and adhere to reasonable arrangements for

settlement, will constitute grounds for

disciplinary action."

The failure to honor financial obligations is

pertinent to petitioner’s federal employer regardless of

whether petitioner is actually convicted of a state tax code

misdemeanor, or simply has decided not to pay state or

federal income tax, because both relate to the employer’s

assessment of petitioner’s judgment capabilities. */

Furthermore, respondent notes that in these

uncertain economic times, petitioner’s reinstatement to the

FAA or other federal job is hardly guaranteed. Although

not part of the record, it is respondent’s understanding

from speaking with Ms. Jan Proper Supervisory Personnel

Manager at the FAA Western Pacific Regional Office that

the FAA is not presently hiring persons for the position of

4. On January 16, 1991, Petitioner M. Monteleone filed in the

U.S. District Court an “Emergency Application For Release on Bail

Pending Habeas Corpus Determination." CR 5. In the application,

petitioner states that her employer would soon be terminating her

from her employment due to her absence from work as follows:

"Petitioner has been informed on January 7, 1991, by her

place of employment (FAA), that unless she returns to work by

January 30, 1991 that she will be considered AWOL and

terminated from her job. Petitioner, who applied for work

furlough release, was denied such release for the reason that the

FAA administrative examination board, upon review of her petition

for Habeas Corpus relief, determined that petitioner’s confinement

was a direct result of her failure to employ counsel in a timely

fashion at trial." CR 5.

24

Air Traffic assistant (the job formerly held by M.

Monteleone), and that it may be eliminating such positions

by Spring 1994 due to economic and_ resource

considerations.=!

Petitioners offer no proof that their employment

actually has been impeded by virtue of their convictions.

And where as here a petitioner has retired and may have

no real interest in seeking employment, or where the

petitioner has other legal difficulties which also would

operate to preclude that petitioner from obtaining a

particular job, the law should not presume that petitioner

has been occupationally disabled by virtue of a

misdemeanor conviction. Cf, Malloy v. Purvis, 681 F.2d

736, 737-740 (11th Cir. 1982); cert. denied, 460 U.S. 1071

(1983) ("tlemish on one’s record resulting from one

conviction is [not] enough of a collateral consequence to

prevent a habeas corpus petition from being moot, where

the petitioner is not in custody and where the petitioner

has multiple convictions").

It is one thing when a criminal conviction materially

affects a person’s present ability to remain a licensed

professional, or otherwise has effects of a "substantial

nature" such as deprivation of basic rights such as "the

right to vote and the right to serve on a jury,’ i.e.,

consequences more generally associated with felony

convictions. See, Bjerkan v. United States, 529 F.2d at 126-

127; see generally, Comment, Civil Disabilities of Felons, 53

5. Respondent brings to the Court’s attention, these and other

facts which are not part of the record below, so that the Court can

fully evaluate the merits of granting review and “flush the

problems" of this case "at the certiorari stage." Conway v. Adult

Authority, 396 U.S.107, 109-110 (1969).

25

Va.L.Rev. 403 (1967). It is entirely another matter when

the criminal conviction has only speculative consequences

or consequences which would be imposed only in the

event of the complainant’s own future wrong-doing. Cf.

Aaron v. Pepperas, 790 F.2d 1360, 1362 (9th Cir. 1986).

A person can control whether or not s/he violates

a criminal law and courts should be reluctant to find

collateral consequences when the possibility that a

petitioner will be adversely affected in the future depends

solely upon a petitioner’s own misdeeds. See Lane v.

Williams, 455 U.S. at 632-633, n. 13; Cf. Reimers v. State

of Oregon, 863 F.2d 630, 632 (9th Cir. 1988).

For similar reasons, petitioners’ additional concern

that they may be impeached in possible future trials, or

otherwise legally handicapped by the blemish on their

record resulting from failure to file state tax forms is, in

a practical sense, unavailing.

It is a fact that petitioners have not filed tax

returns since 1982. Should the matter be raised in the

future in any judicial proceeding, petitioners will suffer the

same adverse practical consequences from their failure to

file federal tax returns--even though the federal

government did not pursue a criminal action against them.

Failure to file a federal tax return involves the same type

of fraudulent irresponsible conduct which underlies their

state tax code convictions. It is this underlying conduct,

not the fact of conviction which can be used to impeach

their credibility as trial witnesses. See People v. Wheeler, 4

26

Cal.4th 284, 288 (1992).£/

Likewise, it is speculation that the misdemeanor

convictions would have an adverse legal impact on

petitioners should they encounter future legal proceedings.

For example, state tax code violations are not, like some

designated crimes (e.g., sex and gun offenses), specifically

used in sentence enhancement. Similarly, because

petitioners skirted no court appearances in this litigation,

they probably would not be subject to bail penalties in a

future action.

Therefore, while it may be the presumption that

convictions carry continuing collateral "legal" consequences

in cases brought on direct appeal (see Sibron v. New York,

392 U.S. 40, 51, 53-58 (1968); Pennsylvania v. Mimms, 434

U.S. 106, 108, n.3 (1977)), such a presumption should not

likewise attach in cases where federal habeas relief of

state court judgments is sought.

In these circumstances, neither this Court nor

others should be compelled to speculate or presume that

there are always adverse consequences from the

imposition of a criminal sanction. See, North Carolina v.

Rice, 404 U.S. at 244 (remanding to the lower court for a

factual determination of whether more serious adverse

consequences would flow from a two-year sentence than

from a nine-month suspended sentence.).

Otherwise, the collateral consequence doctrine has

expanded to such an extent that the mootness inquiry in

6. Respondent also observes that before such impeachment

would be permitted, the trial court generally first would have to

determine that the evidence was more probative than prejudicial.

People v. Wheeler 4 Cal.4th at 284.

ae TS eee ee

27

habeas appeals of state convictions is virtually obsolete,

having been replaced by a flat rule that a petitioner

should be entitled to have any final state conviction

reviewed by the federal courts. Courts have not found

"the Supreme Court desired to hold that a conviction in

and of itself constituted a collateral consequence" and thus

have "refuse[d] to sanction a rule that would effectively

abrogate the meaning and purpose underlying the

requirement of proving collateral consequences." See,

Malloy v. Purvis, 681 F.2d at 738-740.

The "doctrine of collateral consequences [should

be] a narrow exception to the general mootness rule," and

not the exception which swallows the rule. See, Robbins

v. Christianson, 904 F.2d 492 (9th Cir. 1990) and see id. at

pp. 496-497, dissenting op., Noonan, J.

Accordingly, in habeas cases such as this one,

speculative nonstatutory disabilities from a state court

misdemeanor sentence or conviction such as the effect of

the jail term on employment prospects or on a sentence

imposed in a future criminal proceeding should be

insufficient to save a case from being moot once the

sentence has been served. Lane v. Williams, 455 US. at

631-633; Carafas v. LaVallee, 391 U.S. at 237; see also

U.S. v. Sultani, 704 F.2d 132 (4th Cir. 1983) (appeal from

traffic violetion was moot after successful completion of

probationary period as no collateral consequences from

the conviction); Arnold v. Panora, 593 F.2d 161, 163-164

(1st Cir. 1979) (challenge to drivers’ license suspension

moot where collateral consequences such as damage to

reputation and possible adverse treatment by insurance

companies were practical not legal); Cancino v. Craven,

511 F.2d 1371, 1373 (9th Cir. 1975) cert. denied 423 US.

28

875 (1975) (Payment of $50 fine mooted appeal from an

attorney’s contempt conviction, despite the contention that

the conviction might have consequences on his future

career for political office).

A material effect on the petitioner’s present legal

rights should be necessary to permit habeas review of a

state court misdemeanor conviction.

Because petitioners’ unsupportable allegations here

do not satisfy this burden or any Article III threshold, the

case is properly dismissed as moot.

29

CONCLUSION

For the foregoing reasons, we respectfully submit

that the petition for a writ of certiorari should be denied.

In the alternative, we request that the Ninth Circuit

Court of Appeals order dismissing the habeas petitions be

vacated and the matter be remanded to the Court of

Appeals for a decision on the merits.

Dated: September 3, 1993.

Respectfully sub-nitted,

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General

RONALD A. BASS

(De Attorney General

ANN K. JENSEN

Supervising Deputy Attorney General

[Counsel of Record]

ENID A. CAMPS

Deputy Attorney General

Attorneys for Respondent

EAC:cmb

SF93US0003